Sastry & Anor v General Medical Council [2021] EWCA Civ 623 (30 April 2021)

Two doctors, who appealed a decision by the Administrative Court dismissing their appeals under section 40 of the Medical Act 1983, lose second appeals.

Dr Pantula Sastry

Dr Sastry challenged the order of May J, dismissing his appeal against the decision of the Medical Practitioners Tribunal Service (MPTS) to erase his name from the medical register. 

Dr Sastry was registered to practise as a doctor in both UK and India. The GMC proceedings arose whilst working as a consultant medical oncologist in Mumbai.  In brief, Dr Sastry recommended R-ICE salvage chemotherapy followed by an autologous cell transplantation.  The chemotherapy took place between December 2013 and February 2014. This was followed by cell harvesting between March and April 2014. Between 17 and 22 June 2014 high dose chemotherapy with BEAM was administered. On 24 June 2014 the previously collected cells were reinfused. 

The MPTS noted in respect of the high dose chemotherapy that the “high intensity treatment by its nature destroys the patient’s own bone marrow and survival is dependent on successful regeneration of the bone marrow from the patient’s own stem cells that are infused after the chemotherapy.” To ensure that the reinfusion is effective, the harvested cells should contain a sufficiently high proportion of CD34 positive cells; the CD34 count is used as a clinical marker for the presence of stem cells. 

Following the cell transplant, Patient A developed a series of complications. Her bone marrow and cell production failed to recover in response to the transplantation. On 10 July 2014 Patient A died.  Dr Sastry was referred to the GMC by Patient A’s son, Witness B, who claimed that his mother had died as a result of Dr Sastry’s negligent treatment. 

The MPTS determined that Dr Sastry’s misconduct was “fundamentally incompatible with continued registration” and erasing his name from the medical register “would be the only proportionate sanction to impose in order to serve the public interest, maintain public confidence in the medical profession and send a message to the medical profession that this behaviour is unacceptable”. 

Appeal

Dr Sastry argued that May J erred in law as regards the correct approach to be taken by an appellate court when considering an appeal against sanction. The judge’s approach effectively confined itself to a judicial review-type review of the decision on sanction taken by the MPTS.

Judgement

Lady Justice Nicola Davies giving the judgment of the court said in her ruling:

“The essence of the GMC’s case in respect of Dr Sastry was that he recommended to Patient A that she undergo high dose chemotherapy and autologous stem cell transplantation when he knew the same to be inappropriate because she had failed to mobilise an adequate number of CD34 positive cells. Critically, when Dr Sastry at the meeting with the family on 13 June 2014 recommended such radical treatment, he knew that there were insufficient CD34 positive cells for such a procedure. Not only was he aware of this, he was aware of its significance for Patient A. It follows that Dr Sastry was recommending a course of radical treatment to a patient when he knew it was clinically inappropriate. Further, in so recommending, Dr Sastry did not tell the family of the knowledge he possessed, namely that an adequate number of CD34 positive cells had not been collected.

“In our judgment, the proven allegations were grave and properly so considered by the MPT. The fact that these matters arose in India, where there is no multidisciplinary approach and systems may differ, cannot detract from the fact that Dr Sastry knew what he was doing in embarking upon such a course of treatment when he knew the same to be clinically inappropriate. The fact that there are no other regulatory findings against Dr Sastry does not minimise the gravity of his misconduct in treating Patient A. We are in no doubt that the sanction of erasure was both necessary and appropriate for the protection of the public and to ensure public confidence in the medical profession. Accordingly, the appeal of Dr Sastry is dismissed.” 

Dr Udodiri Okpara

Dr Okpara qualified in 1996 from the University of Nigeria. Between 2014 and 2016, he worked on three occasions as a locum registrar in the Accident and Emergency Department at the University Hospital of Wales where Ms A was a staff nurse.

In the proceedings before the MPTS, the GMC made seven allegations of sexual misconduct involving Mrs A. The MPTS found that six were proved in full and one was proved in part.  Consequently, the MPTS found that Dr Okpara’s credibility was undermined by a combination of his blanket denials, evasion even in respect of simple facts and his counter-allegations. 

Dr Okpara’s misconduct was “sufficiently serious and extensive as to be fundamentally incompatible with continued registration”. Erasing Dr Okpara from the medical register would be the only proportionate sanction.

Appeal

Dr Okpara it is submitted that Julian Knowles J erred in law and applied the wrong test in determining whether he could interfere with the MPT’s decision. Further, the judge was wrong to hold that the sanction of erasure rather than suspension was appropriate.

Judgement

Lady Justice Nicola Davies giving the judgment of the court said in her ruling:

“The proven allegations represented a consistent, predatory and escalating course of sexual misconduct by a doctor to a nurse. Dr Okpara rightly accepted that the facts amounted to misconduct and impairment of his fitness to practise.

The MPT recorded that the behaviour had taken place in a “hierarchical institutional context” where Dr Okpara, a doctor of 22 years’ standing, was much more senior than Ms A, a nurse at the start of her career. We agree. We also accept the MPT’s assessment of the sluice room incident as aggressive, threatening and a gross violation of Ms A. The MPT were entitled to find that Dr Okpara, in denying the allegations and making a series of counterclaims against Ms A, had demonstrated a complete lack of insight. In our judgment, this was a continuing and consistent course of predatory sexual misconduct which wholly warranted the sanction of erasure. We agree with the finding of the MPT that such misconduct was fundamentally incompatible with continued registration. Accordingly, the appeal of Dr Okpara is dismissed.”

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